Canada: Is There A Duty To Consult On Legislation? SCC May Decide

This week the SCC received an application to hear an appeal of
the Federal Court of Appeal ("FCA") decision in
Canada (Governor General In Council) v
Courtoreille1("Courtoreille").
The FCA allowed the appeal from the lower court decision and held
that the Crown does not have a duty to consult when
"contemplating changes to legislation that may adversely
impact treaty rights."2 This decision engages well
established democratic principles, Constitutional rights, the
development of Aboriginal Law and the duty to consult.

Background

In 2012, the federal government introduced two omnibus bills,
Bills C-38 and C-45 (the "Omnibus Bills"). The Omnibus
Bills amended several federal environmental laws, including the
Fisheries Act,3Species at Risk
Act,4Canadian Environmental Protection Act,
19995 and former Navigable Waters Protection
Act (now the Navigation Protection Act).6 The
Omnibus Bills also repealed and replaced the Canadian
Environmental Assessment Act.7 The purpose of these
changes was to streamline the permitting process for many
projects.

Chief Courtoreille and the Mikisew Cree First Nation
("Mikisew Cree"), signatories to Treaty 8, brought an
application for judicial review, alleging that the Omnibus Bills
"reduced federal regulatory oversight on works and projects
that might affect their treaty rights to hunt, fish and
trap."8 The Mikisew Cree argued that they should
have been consulted during the development of the Omnibus
Bills.

The Mikisew Cree's argument raises an important issue for
Aboriginal law that has yet to be considered by the Supreme Court
of Canada. In Rio Tinto Alcan Inc v Carrier Sekani Tribal
Council, the Supreme Court noted that the duty to consult
attaches to strategic, higher level decisions.9 Examples
of strategic decisions giving rise to the duty to consult include
forest stewardship plans, municipal land use plans, and regional
water management plans. The case leaves open the question of
whether, and to what extent, legislative action or reform triggers
the duty to consult.10

Mikisew Cree were successful in the first decision. The Federal
Court found that the federal government had a duty to consult the
Mikisew Cree for certain amendments to the Navigation
Protection Act and Fisheries Act which had the
potential to adversely impact fishing and trapping rights. This
duty was triggered when the Omnibus Bills were introduced to
Parliament, and included a duty to give notice and a reasonable
opportunity to make submissions. However, the Federal Court also
found that the duty did not include a duty to accommodate since the
provisions had yet to be applied to any specific situations.

Decision on Appeal

The FCA overturned the Federal Court's decision. Writing for
the majority, Justices De Montigny and Webb noted that legislative
action is "not a proper subject" for judicial review and
that imposing the duty to consult on the legislative process
"offends the separation of powers doctrine and principle of
parliamentary privilege."11

The majority found that the well-established parliamentary
sovereignty and separation of powers doctrines justified the
Court's refusal to impose a duty to consult during the
legislative process. It determined that courts should not meddle
with the legislative process, and would only intervene "after
legislation is enacted and not before."12 The FCA
went on to raise the following concerns:

Imposing a duty to consult at any stage of the process, as a
legal requirement, would not only be impractical and cumbersome...
but would fetter ministers and other members of Parliament in their
law-making capacity.13

The majority further noted that a statute is still open to
constitutional challenge, and went as far as to advise that
consultation before the adoption of an impugned statute would be
key in "determining whether the infringement of an Aboriginal
or treaty right is justified."14 The FCA did not
provide further detail about when such consultation should take
place.

In Justice Pelletier's concurring reasons, he allowed the
appeal on the basis that the Omnibus Bill amendments were of
general application, and the duty to consult is not triggered by
legislation of general application across Canada affecting all of
its occupants. Pelletier, J. left the door open for the duty to
consult to be triggered by legislation whose effects are
"specific" to particular Indigenous peoples, or to
specific territories in which they have in
interest.15

Significance of the Decision

The Mikisew Cree challenge appears already to be affecting the
development of legislation. The federal government is currently
engaging Indigenous people about the same environmental legislation
impacted by the Omnibus Bills through: (i) hearings before panels
of experts in numerous cities across the country: (ii)
parliamentary committee hearings; and (iii) funding Indigenous
communities and First Nations to participate in the hearings
through oral and written comments.

This is consistent with the majority's statement that
"it is good politics to engage... Aboriginal groups on
legislative initiatives which may affect them or regarding which
they have a keen interest before introducing legislative
initiatives into Parliament."16 However, the
majority acknowledged that these forums may not be sufficient to
meet the obligations arising from the duty to consult.

The majority also noted that the application of legislation is
open to constitutional challenges if used to justify a decision
that would "impede or prevent the enjoyment" of
Indigenous rights.17 However, these avenues of recourse
are costly, "after the fact" and are reactive, rather
than proactive.

This case raises important issues for democracy and Aboriginal
law. If the Supreme Court chooses to hear the appeal, how will the
Supreme Court draw the balance between allowing the legislature to
draft without interference from the judiciary, while meeting the
Aboriginal law principles of the honour of the Crown, duty to
consult and reconciliation? Is the government constitutionally
required to consult with Indigenous people before introducing
legislation? Is the duty triggered at some other point before Royal
Proclamation? Is the duty engaged by legislation with specific
effects or more general legislation? How "specific" do
the effects need to be? And what is the scope of meaningful
consultation on legislation?

These are all vital questions, and Willms & Shier will
provide updates as the law develops.

Footnotes

1. 2016 FCA 311 [Courtoreille].

2. Ibid at para 2.

3. RSC 1985, c F-14.

4. SC 2002, c 29

5. SC 1999, c 33.

6. RSC 1985, c N-22.

7. SC 1992, c 37; SC 2012, c 19, s 52.

8. Courtoreille at para 1.

9. 2010 SCC 43.

10. Courtoreille at para 47.

11. Ibid at para 3.

12. Ibid at paras 52 and 53.

13. Ibid at paras 59 and 60.

14. Ibid at paras 51 and 63.

15. Ibid at paras 84 and 91.

16. Ibid at para 61 and 62.

17. Ibid at para 51.

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